Monday, June 19, 2017

Whistleblower John Tipaldo Wins His Case Against the NYC Department of Transportation, 20 Years After Blowing The Whistle

John Tipaldo

Court rules acting in good faith key to whistleblower protection
NYSSBA
On Board Online • November 16, 2015

After becoming aware of alleged bidding irregularities in the New York City Department of Transportation (DOT), an employee notified his immediate supervisors and the Department’s Inspector General. Should the employee be protected under the state’s Civil Service whistleblower law from adverse job actions, even though he failed to first inform the official “appointing authority” as specified in the law?

Yes, according to the state’s highest court, the Court of Appeals, in Tipaldo v. Lynn.

The reason? The appointing authorities and the alleged wrongdoers were one and the same, and the actions of the employee, John Tipaldo, demonstrated good faith compliance with the law.

Tipaldo worked as DOT’s Acting Assistant Commissioner for Planning and Engineering. He discovered an alleged scheme by his then-superiors (Transportation Commissioner Christopher Lynn and First Deputy Commissioner Richard Malchow) by which a signage contract was to be awarded to Lynn’s acquaintance in violation of the city’s public bidding rules.

After an order was placed for the signs from Lynn’s acquaintance, a meeting was held informing DOT employees, including Tipaldo, that the signs had been purchased. The legality of the process was questioned by Tipaldo and other employees, and the DOT employees who were required to authorize the purchase refused to sign the authorization for the purchase. According to the court, the next day, Lynn and Malchow solicited bids from the public and after the delivery and installment of the signs, the DOT received lower bids as compared to the amount paid to Lynn’s acquaintance. Then Lynn and Malchow allegedly created a backdated memorandum indicating that the need for the signs was “urgent” and that the order must be placed immediately, rather than proceed through bidding.

Tipaldo informed his immediate supervisors about the alleged misconduct and, one or two business days later, reported the alleged improper actions to the DOT Office of the Inspector General. Tipaldo claimed that shortly after that, various retaliatory actions were taken against him by Lynn and Malchow. He was eventually removed from his position and demoted.

Tipaldo commenced a whistleblower action pursuant to Civil Service Law Section 75-b. Pursuant to that law, adverse action must not be taken against a public employee because the employee discloses to a governmental body information which he or she “reasonably believes to be true and reasonably believes constitutes an improper governmental action.” However, prior to the reporting, the employee must make “a good faith effort to provide the appointing authority or his or her designee the information to be disclosed and shall provide the appointing authority or designee a reasonable time to take appropriate action unless there is imminent and serious danger to public health or safety.” This requirement gives the employer the opportunity to end the violations prior to disclosing misconduct to an outside agency.

The defendants sought to dismiss the case, arguing that Tipaldo failed to comply with the statute by not reporting the alleged wrongful actions to the appointing authority (Lynn and Malchow) before contacting the Office of the Inspector General.

A state Supreme Court judge granted defendants motion and dismissed the complaint, but the Appellate Division reversed on appeal. The Appellate Division found that “plaintiff’s good-faith efforts in the manner and timing of his reporting, first informally to his immediate supervisors, and then soon thereafter to the [DOI], satisfactorily met the requirements” of the Civil Service Law.

The Court of Appeals agreed with the Appellate Division. It determined that because the appointing authorities in the specific case were actually Lynn and Malchow, the plaintiff “understandably did not report their alleged misconduct to them.” The court noted, “Lynn and Malchow would not likely have been receptive to plaintiff’s complaints or reported themselves to the Department of Investigation.” The court found that Tipaldo’s actions demonstrated good faith compliance with the Civil Service Law.

Although this case does not involve school district employees, the court’s decision applies to all public employees and thus school districts will be affected by this ruling.

Editor’s Note: A legislative bill (A.7951/S.4628) which passed both houses during the last legislative session would eliminate the requirement for a whistleblower to first report to the appointing authority. NYSSBA opposed the bill because such notification provides school districts and other public employers with the opportunity to make corrections and avoid unnecessary litigation. The bill has not yet been delivered to the governor.


John TIPALDO, Respondent, v. Christopher LYNN, & c., et al., Appellants.

New York court orders reinstatement of whistleblower

By on September 2, 2010Posted in Government Whistleblowers

A New York State appellate court has ordered the New York City Department of Transportation to reinstate whistleblower John Tipaldo. When Tipaldo reported that his superiors violated bidding rules, he was demoted from his position as Acting Assistant Commissioner for Planning. That was in 1996. In 2006, the trial court granted the City summary judgment on grounds that Tipaldo had not made a formal report of the bidding violations to the "appointing authority." The appellate court reversed in 2008 holding that Tipaldo’s report to the Department of Investigations was appropriate when the "appointing authority" was the person engaged in the violations. Tipaldo v. Lynn, 48 AD3d 361. The appellate court held that since there was no dispute about the retaliatory demotion, the case would be remanded only for a determination of damages and remedies. On the second appeal, the court held that Tipaldo was entitled to interest on his back pay, thereby increasing his award from $175,000 to $662,721. The appellate court awarded the interest even though the state’s statute did not make any explicit provision for interest. The state statute has "the goal of remediating adverse employment actions which, if allowed, would undermine an important public policy, that is, encouraging public employees to expose fraud, waste and other squandering of the public fisc." Tipaldo had hired an expert to compute the interest and the City did not. The court also held that Tipaldo was entitled to reinstatement even though he had declined promotions offered after his demotion. The court said that his corroborated fear of retaliation made his decisions reasonable so that he could still receive reinstatement as part of the court’s order. It took Tipaldo 14 years, and two trips to the court of appeals to get justice. This is an example of how public officials, when challenged by the integrity of a whistleblower, will waste unlimited public resources to delay justice. This might be a good time for New York’s legislature to consider improving its whistleblower law to provide for general and punitive damages, interest, expert fees, attorney fees and jury trials. The case is Tipaldo v. Lynn, Thank you to the New York Public Personnel Law blog for alerting me to this decision.

Whistleblower wins more than $1M in lawsuit over demotion

, NY POST, 6/17/17

A whistleblower triumphed in a 20-year battle with City Hall, winning more than $1 million to compensate for a pay cut and demotion he suffered after reporting corruption.
As a Department of Transportation official under Mayor Rudy Giuliani in 1996, John Tipaldo alerted authorities to a plan by his bosses — DOT Commissioner Christopher Lynn and first deputy Richard Malchow — to award a contract to make 100 “Don’t Honk” signs to Lynn’s buddy.
The two officials tried to cover their tracks after awarding the contract by publishing a notice seeking public bids. They also issued a memo claiming an urgent need for the signs required bypassing normal bidding rules, a probe confirmed.
After Tipaldo tipped off the city Department of Investigation, Lynn and Malchow set out to destroy his career, the DOI confirmed.
While Tipaldo was due a promotion to assistant commissioner, the duo bad-mouthed his job performance and demoted him, slashing his salary by $25,000 a year.
Tipaldo sued. While the DOI found him the victim of retaliation, city lawyers argued that the whistleblower law required him to report wrongdoing to his bosses — the same guys engaged in the scam.
“This is an example of how public officials, when challenged by the integrity of a whistleblower, will waste unlimited public resources to delay justice,” the National Whistleblower Center said in 2010, when an appellate court found in Tipaldo’s favor.
The appellate judges ruled Tipaldo deserved a raise, back pay for salary he would have received if he hadn’t fingered Lynn and Malchow — plus 9 percent a year in interest.
But it wasn’t over yet. The city Law Department appealed to the Court of Appeals, the last resort in New York. In 2015, the high court unanimously upheld Tipaldo’s win.
The city finally is paying off its debt to Tipaldo, now a DOT assistant commissioner, in installments.
Last fiscal year, he was NYC’s highest-paid employee, collecting $672,700, including his $176,700 salary, records show.
“It started out by screwing him out of a raise of $25,000 a year. It wound up costing them over $1 million, plus the time and effort of the Law Department for over 20 years,” a source remarked.
“This case has a complicated procedural history, including multiple appeals, that prolonged the litigation,” said Law Department spokesman Nick Paolucci.
Lynn, who insisted his pal “Vinnie” was the only person who could do the sign job, left the DOT in 1997 after the probe concluded he violated procurement rules.
Reached last week, he said he did “nothing illegal or immoral.” and questioned whether Tipaldo deserved the big award.
Tipaldo and his lawyer, Lewis Rosenberg, declined to comment.

Wednesday, June 7, 2017

How the Politically Connected Control the New York Court System

Judge Joan Kenney

How the politically connected control the New York court system



Geoffrey Wright
Manhattan lawyers knew Judge Joan Kenney was “confrontational,” “abusive” and “outright nasty” — and said so on a judge-ranking Web site, The Robing Room.
One fed-up attorney went further, complaining to the state Commission on Judicial Conduct that she was “rude” and failed to display “judicial temperament” during a settlement conference.
The city Bar Association publicly branded her with a damning “Not Approved” rating in 2010, saying she failed “to affirmatively demonstrate the requisite qualifications” to sit in judgment of others.
And last year, she was “universally not respected” by a Democratic screening committee that blocked her bid to run for a seat on the state Supreme Court, a panel member told The Post.
But none of the red flags affected her seat on the bench — or even her 2009 promotion to acting Supreme Court justice, for which she scored her first annual renewal just two months after being deemed unfit by the Bar Association.
That all ended on May 9, when Kenney showed up to court an hour late and disheveled, then erupted in fury at reporters taking notes in the public gallery.
“You can’t write everything I say. I think out loud,” she ordered. “In this courtroom, I’m the boss.”
She was demoted to handling lesser matters in Manhattan Civil Court — to which she was elected in 2000 and 2010 — and her conduct cost her the $13,600-a-year salary differential between the two jobs.
It also shone a light on the political machinations that turn lawyers into judges in the Big Apple, where the road to the bench has long been shadowed by suspicions that corrupt pols were putting unqualified hacks on the bench.
“There’s bad apples in any industry, and everybody knows who those judges are. There are several names you can say and the whole room will groan,” said high-profile Manhattan lawyer Elizabeth Eilender, who represented Atlanta Hawks hoopster Thabo Sefolosha in a false-arrest suit against the NYPD. “Even when outrageous behavior is brought to the state’s Commission on Judicial Conduct, nothing gets done. It’s not until the press shines a bright spotlight on this type of conduct that anything is done.”
New York City has more than 400 judges who are selected locally, according to the state Office of Court Administration.
Voters choose the judges for the Supreme, Surrogate’s and Civil courts, while the mayor appoints judges to the Family and Criminal courts and also fills interim vacancies in Civil Court.
For the elected judgeships, candidates must win nomination through a primary election, except for Supreme Court, where candidates are chosen through a judicial nominating convention.
But given the Democratic Party’s overwhelming dominance in every borough except Staten Island, “the ‘election’ of a judge is often determined de facto at the nomination stage,” according to a 2014 guide by the city Bar Association. “Political considerations, including a history of political party activity, contributions to political party organizations and acquaintance with political party officials, may influence the selection process to varying degrees,” the report notes.
That influence has been an issue since the at least the 1800s, when a crisis of confidence in the legal system led voters to amend the state Constitution in 1869 and ratify the election of judges, who at the time were all appointed to the bench.
The change helped sweep from power William “Boss” Tweed’s nakedly corrupt Tammany Hall political machine, with the bloody “Orange Riot” leading to its virtual destruction in the election of 1871.
But any hope that politics no longer corrupted the selection of city judges was irreparably dashed by the mid-2000s scandal that brought down Brooklyn Democratic boss and longtime Assemblyman Clarence Norman for extorting $10,000 from a judicial candidate.
During a 2007 trial — one of three at which Norman was convicted of crooked schemes — former Brooklyn Civil Court Judge Karen Yellen told jurors how the “King of Brooklyn” put the screws to her campaign manager, Scott Levenson, while negotiating his party’s endorsement of her re-election bid.
The deal included a $1,000 donation to the campaign of a Norman political ally, then-Assemblywoman Adele Cohen, and $9,000 to crony William Boone for a get-out-the-vote operation.
“Ultimately, the words he used were, ‘We will dump her,’ ” Yellen testified about the July 2002 shakedown inside Brooklyn’s Democratic Party headquarters on Court Street.
“He was very angry. It was very, very unpleasant. He rose up out of his seat, leaned across the desk and was in Scott’s face.
“I know I was shocked because the way it was done was not the way one expects it to happen — unprofessional and astonishing,” she added.
Yellen broke down in tears while describing the ultimate results of the 2002 Democratic primary. “I lost,” she said. “And I was out of a job.”
But she admitted forking over $9,000 a day after the defeat — in the vain hope it would help buy her another seat on the bench.
“I thought that possibly I could go up to the Supreme Court,” she said. “That I could get the nomination from the party if I paid the monies that were demanded of me, that I could save my career.”
Norman wound up serving nearly four years in the slammer for shaking down Yellen, soliciting illegal contributions from a lobbyist and stealing $5,000 in campaign funds, before being paroled in 2011. He and Yellen both declined to comment.
Kenney’s since-rescinded promotion to acting Supreme Court justice illustrates another way politics can affect the makeup of the city’s judiciary, sources said. While the number of Supreme Court seats in each judicial district is fixed by the state Constitution, the demands of an ever-increasing caseload has led court administrators to elevate certain lower-court judges to fill the gap.
Currently, 143 — or nearly half — of the city’s 294 Supreme Court justices are there by virtue of appointment by the chief administrative judge, in consultation with other court officials.
“The most important factor in making these appointments is ability to handle Supreme Court cases, but seniority is also a factor,” Chief Administrative Judge Lawrence Marks said.
Getting appointed an acting Supreme Court justice is considered “a plum,” said one court insider, who added, “It’s a much more prestigious position and a lot less work.”
“Some people get acting Supreme because they’re producers. Others get it because of support from the county [political] leaders,” the source said. “There’s political grease with 50 to 60 percent of them . . . Unless you do something bad, they don’t take it away from you.”
And while demotions are rare, Kenney’s was actually preceded earlier this year by the even-harsher punishment imposed on Manhattan Civil Court Judge Geoffrey Wright, who was bounced from Manhattan Supreme Court to Queens Family Court. Sources said it was for repeatedly clashing with Manhattan prosecutors, including cursing one out in open court.
The humiliating move followed an official complaint from Manhattan District Attorney Cyrus Vance Jr., sources said at the time.
Neither Kenney nor Wright responded to a request for comment.
Wright — son of the late judge known as “Cut ‘Em Loose Bruce” Wright — is the brother of former Harlem Assemblyman Keith Wright, chairman of the Manhattan Democratic Party.
Last year, The Post revealed that Keith Wright had alienated some party members by pushing for an endorsement of his brother’s law clerk, Phaedra Perry, to run for a Civil Court judgeship.
Perry won the backing of the party’s Executive Committee at a closed-door meeting last month, a source said. Geoffrey Wright is also up for re-election this year, and — despite his recent humbling — is all but guaranteed re-election due to his brother’s influence, said longtime judicial-convention delegate Alan Flacks.
“No one’s allowed to run against him. Keith Wright wants his brother re-elected. There is a panel of one up there, and it’s called the Keith Wright selection panel,” Flacks said.
“What black lawyer in Harlem will run against the county leader’s brother? No one.”
For decades, reformers have been calling for the elimination of judicial elections and creation of an independent “merit-based” selection system involving screening panels composed of lawyers and nonlawyers who don’t hold any other public offices.
“A process which relies on political connections may not sufficiently emphasize the importance of character and integrity, and the extensive political ties of those judges chosen by such a process may additionally make them more susceptible to requests for favors from the political leaders who helped elect them,” according to a 2003 report by a task force of the city Bar Association.
The report cited a 1992 study by the Fund for Modern Courts that examined judicial-misconduct cases dating back 15 years and found that seven of 181 elected city judges were convicted of a crime, removed from office or otherwise publicly sanctioned, compared with just one of 188 appointed judges.
The Bar Association also slammed the naming of acting Supreme Court justices, saying they’re “effectively chosen by an official with limited political visibility, through a process which makes no use of an insulating, independent selection committee.”
It called for ending those appointments in favor of establishing “an adequate number of regular Supreme Court judges,” with court officials agreeing until then not to elevate any judge who “has been found not qualified by this association or any comparable group.”
Retired Appellate Division Justice David Saxe, now a partner at the Morrison Cohen law firm, offered a bleak assessment.
“Our state court system in New York is absolutely insane,” he told The Post. “It has enabled political people to control the courts, and they don’t want to give it up — so it’s very hard to get legitimate change that would be beneficial to the public.

Friday, May 19, 2017

Anthony Weiner Pleads Guilty To Sexting a 15-Year Old Girl

Anthony Weiner leaves Federal Court
Yes, Anthony Weiner. Husband of Huma Abedin, and formerly on his way to being this close to the President of the United States.

Betsy Combier
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Anthony Weiner


Anthony Weiner Pleads Guilty to Federal Obscenity Charge



Anthony D. Weiner, the former Democratic congressman whose sexting scandals ended his political career and embroiled him in a tumultuous F.B.I. investigation of Hillary Clinton before the election, pleaded guilty to a felony on Friday, crying openly as he admitted to conduct that he knew was “as morally wrong as it was unlawful.”

The plea agreement ended a federal investigation into a series of sexually explicit pictures and messages that Mr. Weiner sent last year to a 15-year-old girl in North Carolina.

It capped the long, tortured downfall of Mr. Weiner, who ruined a once-promising career in Congress and then spoiled various attempts at resurrecting his reputation, all through his uncontrolled habit of using social media and texts to send explicit images to women.

It also cost him his marriage: His estranged wife, Huma Abedin, a top aide to Mrs. Clinton, filed for divorce from Mr. Weiner on Friday in New York, according to two people with knowledge of the action.

“I engaged in obscene communications with this teenager,” Mr. Weiner said, his voice high and shaky, and his body trembling. Those communications “included sharing explicit images and encouraging her to engage in sexually explicit conduct,” just as he had done with adult women, he said.

Mr. Weiner, 52, will have to register as a sex offender where he works and lives, and he may face a prison term. He pleaded guilty to transferring obscene material to a minor, which carries a sentence of up to 10 years in prison.

Federal prosecutors said in the plea agreement that a sentence in the range of 21 to 27 months would be “fair and appropriate.” Mr. Weiner is to be sentenced on Sept. 8 in Federal District Court in Manhattan.

Mr. Weiner was led into the courtroom for the brief hearing wearing a slim navy suit with a white shirt and maroon tie; a wedding band could be seen on his left hand. He sat quietly between his lawyers, exchanging whispers with one, Arlo Devlin-Brown, and an occasional smile.

But Mr. Weiner quickly dissolved into tears as he read from a written statement when the judge, Loretta A. Preska, asked that he describe what he had done.

“I’ve given this some thought,” he told her.

As he paused to brace himself, Mr. Devlin-Brown placed a hand on his lower back to comfort him and a courtroom worker brought over a box of tissues.

Mr. Weiner told Judge Preska that from the time he was in Congress through the first half of last year, “I’ve compulsively sought attention from women who contacted me on social media, and I engaged with many of them in both sexual and nonsexual conversation.”

“These destructive impulses brought great devastation to my family and friends, and destroyed my life’s dream in public service,” he said. “Yet I remained in denial even as the world around me fell apart.”

Reports of the federal investigation surfaced in September after DailyMail.com reported that Mr. Weiner had engaged in an online relationship with the girl, which included explicit messages sent over social media and suggestive texts.

It was during the investigation that the F.B.I. seized Mr. Weiner’s electronic devices, including a laptop on which agents found a trove of emails to Ms. Abedin. That discovery led to the surprise announcement in late October by James B. Comey, then the F.B.I. director, that the bureau was conducting a new investigation into Mrs. Clinton’s handling of official email, an inquiry that ended two days before the election, with no charges brought. Mrs. Clinton recently attributed her election loss in part to Mr. Comey’s announcement.

After the guilty plea, Joon H. Kim, the acting United States attorney in Manhattan, said, “Weiner’s conduct was not only reprehensible but a federal crime, one for which he is now convicted and will be sentenced.”

Mr. Devlin-Brown said that his client had “accepted full responsibility” for his conduct, and that the resolution was “on terms far less severe than could have been sought.” He said Mr. Weiner would have no further comment and “remains focused on his recovery.”

As Judge Preska informed Mr. Weiner of his rights during the hearing, he stood with his hands together before him, listening intently. When the judge asked if he was pleading guilty because he was guilty, he responded directly, “I am guilty, your honor.”

Mr. Weiner told the court that in January 2016, he was contacted by — and began exchanging online messages with — “a stranger who said that she was a high school student, and who I understood to be 15 years old.”

“I knew this was as morally wrong as it was unlawful,” he added.

Mr. Weiner, choking up and rubbing his forehead, said that last fall he “came to grips for the first time with the depths of my sickness.”

“I — I had hit bottom,” he said. “Through treatment I found the courage to take a moral inventory of my defects.” He said he began a program of recovery and mental health treatment that he was continuing.

“I accept full responsibility for my conduct,” he told Judge Preska. “I have a sickness, but I do not have an excuse.”

Mr. Weiner said he had apologized to those he had hurt, including the teenage girl “whom I mistreated so badly, and I am committed to making amends to all those I have harmed.”

Mr. Weiner was forced to resign from Congress, where he represented parts of Queens and Brooklyn, in June 2011, not long after an explicit picture, sent from his Twitter account, became public. Mr. Weiner initially claimed that his account had been hacked but eventually admitted that he had lied and that he had sent the image and had inappropriate online exchanges with at least six other women.

An effort to resurrect his career progressed in 2013 as he began his candidacy for mayor of New York. But that, too, collapsed after the emergence of additional explicit online messages.

Mr. Weiner’s marriage to Ms. Abedin fell apart after new suggestive text messages surfaced in August, including one with an image of Mr. Weiner’s crotch as he lay next to the couple’s son, who was 4.

After the hearing, Mr. Weiner silently left the courthouse with his lawyers, ignoring a crowd of reporters and photographers as he stepped into a black Nissan and was driven away.Anthony Weiner to Plead Guilty to Resolve ‘Sexting’ Inquiry


By BENJAMIN WEISER and WILLIAM K. RASHBAUMMAY 19, 201

Anthony D. Weiner, the former Democratic congressman whose “sexting” scandals ended his political career and embroiled him in a tumultuous F.B.I. investigation of Hillary Clinton before the election, is to appear in a federal courtroom in Manhattan on Friday to enter a guilty plea.

The information has not been made public but was related by two people who have been briefed on the matter and asked not to be identified.

Mr. Weiner will plead guilty to a single charge of transferring obscene material to a minor, pursuant to a plea agreement with the United States attorney’s office in Manhattan, one of the people said. Mr. Weiner surrendered to the F.B.I. early Friday morning.

The federal authorities have been investigating reports that, beginning in January 2016, Mr. Weiner, then 51, exchanged sexually explicit messages with a 15-year-old girl in North Carolina.

The plea covers conduct by Mr. Weiner from January through March of last year, the person said. A likely result of the plea is that Mr. Weiner would end up as a registered sex offender, although a final determination has yet to be made, the person added.

The charge carries a potential sentence of between zero and 10 years in prison, meaning Mr. Weiner could avoid prison. The ultimate sentence would be determined by a judge.

Reports of the federal investigation surfaced in September after a British newspaper, The Daily Mail, reported that Mr. Weiner had engaged in an online relationship with the girl, which included explicit messages sent over social media and suggestive texts.

It was during the investigation that the F.B.I. seized Mr. Weiner’s electronic devices, including a laptop computer on which agents found a trove of emails to his estranged wife, Huma Abedin, a top aide to Mrs. Clinton. That discovery led to the surprise announcement in late October by James B. Comey, then the F.B.I. director, that the bureau was conducting a new investigation into Mrs. Clinton’s handling of official email, an inquiry that ended two days before the election, with no charges brought.

Mrs. Clinton recently attributed her election loss in part to Mr. Comey’s announcement.

A defendant’s decision to plead guilty, of course, is subject to change at the last minute. A representative of the United States attorney’s office in Manhattan had no comment on the case.

The Daily Mail article said that Mr. Weiner began exchanging messages with the girl when she was a high school sophomore and that the messages indicated that Mr. Weiner knew that she was underage.

The newspaper, which did not identify the girl, said she did not want to press charges “because she believes her relationship with Weiner was consensual.” The paper said that she and her father agreed to be interviewed “out of concern that Weiner may be sexting with other underage girls.”

Mr. Weiner was forced to resign from Congress, where he represented parts of Queens and Brooklyn, in June 2011, not long after an explicit picture, sent from his Twitter account, became public. Mr. Weiner initially claimed that his account had been hacked but eventually admitted that he had lied and that he had sent the image and had inappropriate online exchanges with at least six other women.

An effort to resurrect his career progressed in 2013 as he began his candidacy for mayor of New York. But that, too, collapsed after the emergence of additional explicit online messages.

Mr. Weiner’s marriage to Ms. Abedin fell apart after new suggestive text messages surfaced in August, including one with an image of Mr. Weiner’s crotch as he lay next to the couple’s son, who was 4.

Saturday, March 25, 2017

Arbitrator From A Rabbinical Panel Was Convicted of A Crime, But Prior Decisions Stand

Arbitration Award Stands Even Though One Of The Arbitrators Was Later Convicted Of Crime
Arbitration awards are, by design, difficult to vacate. But what happens when one of the arbitrators who entered the award is later convicted of a crime related, at least to some extent, to an issue in the arbitration. In Litton v. Litton, the Appellate Division addressed this interesting but (hopefully) uncommon occurrence.
In Litton, plaintiff and defendant were married in 1982 and had one child. In 2008, the Family Part entered a judgment of divorce and ordered them to share joint custody of their son. They were also directed to proceed to arbitration before a rabbinical panel, or Beth Din, which they did. The panel, which was comprised of three rabbis, entered an award requiring the husband to pay the wife $5,000 per month until he gave her a Get. (As the Appellate Division explained, a Get is a "written document a husband must obtain and deliver to his wife when entering into a divorce. Without a Get, a wife cannot remarry under Jewish law.") Once the wife received the Get, the husband's monthly support obligation would be reduced to $3,500. The husband was also ordered to pay $20,0250 in arrears, $100,000 in the wife's legal fees, and a fine of $250,000 for "his refusal to disclose information about the couple's joint funds."
Several months later, the wife moved to enforce the award and, apparently, have the husband jailed for not complying with it. The Family Part denied the request and found that the husband was not capable of complying with the support order.
Four years later, the Family Part reduced the husband's support obligation from $5,000 per month to $23 per week. Around the same time, in a "wholly unrelated matter," one of the arbitrators on the panel was charged with, and apparently later convicted of, "criminal conspiracy to threaten and coerce Jewish husbands to give Gets to their wives." The husband moved to vacate the arbitration award, arguing that, in light of these charges against one of the rabbis on the panel, "the award was the product of corruption." The trial court denied the motion, holding that there was no causal connection between the arbitration in 2008 and the charges against the rabbi five years later, and that there were two other rabbis on the panel who were not charged as part of the conspiracy. The husband appealed.
The Appellate Division affirmed the trial court's decision. It observed that New Jersey favors arbitration and therefore a court will only vacate an arbitration award if (1) it is "procured by corruption, fraud, or other undue means," or (2) the court finds partiality, corruption, or misconduct by the arbitrator that prejudices a party's rights. The husband argued that, based on the Family Part's decision that he could not afford to pay $5,000 per month, its subsequent reduction of the support obligation to $23 per week, and the rabbi's conviction, the court could "'connect the dots' and infer the arbitration award in the parties' case was fraudulently procured or corrupt." The Appellate Division disagreed, citing favorably the trial court's conclusion that "the dots [were] too far away and unrelated." Accordingly, the Appellate Division affirmed the trial court's decision that the husband could not satisfy his burden of showing that the arbitration award was the product of fraud or corruption.
The Appellate Division also rejected the husband's argument that the rabbi had a duty to disclose "the lengths he would go to to 'assure wayward husbands granted GETS to their wives.'" The court noted that an arbitrator is required to "disclose to all parties any financial or personal interest, and any existing or past relationship with any of the parties." If the arbitrator fails to do so, then a court may vacate a subsequent award. But, in Litton, the Appellate Division held that the husband could not establish that the rabbi had any personal or financial interest in the award or that he was even "unlawfully coercing husbands to give their wives Gets at the time plaintiff and defendant engaged the rabbinical panel." Accordingly, the arbitrator did not breach any disclosure obligation and the arbitration award could stand.
Betsy Combier
betsy.combier@gmail.com

Thursday, March 16, 2017

Lancman v. De Blasio: NYC Mayor Violated City Charter and Administrative Law

This is an interesting case where Bill de Blasio's administration tried to side-step administrative law and the funding structure in the NYC Charter §109 for land use deals involving Flushing Meadows-Corona Park. He succeeded, because his Attorney said he could.
NYC Mayor Bill de Blasio

Mayor Broke Law But Can't Be Charged Because His Lawyer OK'd It, DA Says
Betsy Combier
 betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Lancman v. De Blasio

  • Supreme Court, New York County, Part 32
  • 155577/2016
  • Justice Arlene Bluth
Cite as: Lancman v. De Blasio, 155577/2016, NYLJ 1202781108093, at *1 (Sup., NY, Decided February 16, 2017)

CASENAME

Rory Lancman, Monica Corbett, Plaintiffs v. Bill De Blasio, City of New York, Alliance for Flushing Meadows-Corona Park Corporation Defendants
155577/2016
Justice Arlene Bluth

Defendants moved to dismiss plaintiffs' complaint arguing the claims were barred by the statute of limitations in this suit arising from the creation of the Alliance for Flushing Meadows-Corona Park—an entity overseeing land use deals entered into by N.Y.C. related to the park. Plaintiffs argued the Alliance's license with the city's Parks and Recreation Department, its by-laws violated Administrative Code §18-137(b), and funding structure violated City Charter §109. Defendants alleged a four month statute of limitations applied, arguing the substance of the action was an Article 78 proceeding, despite relief being sought was declaratory. Plaintiffs alleged the catch-all six year limitations period applied as they could not have brought this suit as an Article 78, noting the statute of limitations renewed each day as defendants continuously violated the law. The court ruled facts of the suit did not support defendants' conclusion the suit could have been brought as an Article 78 as it challenged a governmental body's action or determination, noting there was no determination made by the Alliance as plaintiffs sought a declaration the current by-laws and funding scheme violated the law. Thus, the six year limitations period applied, plaintiffs' claims were timely, and dismissal was denied.Read Summary of Decision
Decided: February 16, 2017

DECISION & ORDER


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Defendants' motion to dismiss plaintiffs' complaint on the ground that plaintiffs' claims are barred by the statute of limitations is denied.

Background

This action arises out of the creation of the Alliance for Flushing Meadows-Corona Park (the "Alliance"). This entity oversees certain land use deals entered into by the City of New York related to Flushing Meadows-Corona Park, the largest park in Queens County, New York. Plaintiffs maintain that the Alliance's license agreement with the City's Parks and Recreation Department and its by-laws violate NYC Administrative Code §18-137(b), which requires that there be at least one voting board member from each overlapping City Council district and one representative for every two abutting districts. Plaintiffs assert that the park overlaps four City Council districts, including the district represented by plaintiff Lancman (the 24th District), but his district has no representation.
Plaintiffs also insist that the Alliance's funding structure violates New York City Charter

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§109 because the payments received from the United States Tennis Association (the "USTA")1 do not go to the City's general fund as required by this charter section. Plaintiffs claim that they first learned of the these issues when plaintiff Lancman received a copy of the Alliance's by-laws on January 6, 2016 and that the instant complaint was filed on July 26, 2016 seeking declaratory and injunctive relief.
Defendants claim that a four-month statute of limitations apply and that this period began on December 15, 2015 at a publicly-noticed Board meeting where the Alliance's by-laws were discussed and the license agreement was approved. Defendants argue, in the alternative, that the statute of limitations began to run on January 6, 2016, when plaintiff Lancman received a copy of the by-laws.
Defendants insist that a four-month statute of limitations applies because the substance of this action is an Article 78 proceeding even though the relief sought is declaratory. Defendants further argue that plaintiffs' claim regarding improper funding is time-barred because plaintiffs should have known about the funding arrangement as early as November 2013, when the Alliance was incorporated.
In opposition, plaintiffs insist that the catch-all six-year statute of limitations under CPLR 213(1) applies because they could not have brought this action as an Article 78. Plaintiffs also insist that the statute of limitations renew each day because the defendants are continuously violating the law. Plaintiffs further assert that the Alliance is a private, non-profit entity and not a body or officer pursuant to Article 78 and, therefore, the four-month limitations period is inapplicable.

Discussion


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"On a CPLR 3211 motion to dismiss, the court will accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Nonnon v. City of New York, 9 NY3d 825, 827, 842 NYS2d 756 [2007] [internal quotations and citation omitted]).
"[W]hen the proceeding has been commenced in the form of a declaratory judgment action, for which no specific Statute of Limitations is prescribed, 'it is necessary to examine the substance of that action to identify the relationship out of which the claim arises and the relief sought' in order to resolve which Statute of Limitations is applicable" (New York City Health & Hospitals Corp. v. McBarnette, 84 NY2d 194, 200-01, 616 NYS2d 1 [1994] quoting Solnick v. Whalen, 49 NY2d 224, 229 425 NYS2d 68 [1980]). "Only if there is no other form of proceeding for which a specific limitation period is statutorily provided may the six-year catch all limitations period provided in CPLR 213(1) be invoked" (id. [internal quotations and citation omitted]).
Defendants insist that this action could have been brought as an Article 78 proceeding because it challenges a governmental body's action or determination. However, the facts of the instant lawsuit do not support that conclusion. Defendants are unable to identify a specific determination made by the Alliance that could be raised in an Article 78 proceeding.
Merriam-Webster defines determination as "the resolving of a question by argument or reasoning" (Merriam-Webster Online Dictionary, determination [https://www.merriamwebster. com/dictionary/determination]). Defendants' suggested characterization of a determination — adoption of the by-laws of the Alliance — would stretch this definition beyond all reasonable interpretation. Adopting by-laws does not resolve a question by argument or

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reasoning. Adopting by-laws is not a determination. Besides, the plaintiffs are challenging the inherent structure and funding scheme of the Alliance rather than a distinct, discrete finding made by the Alliance.
Defendants' reliance on cases such as Solnick is similarly unavailing. In Solnick, petitioner sought review of "a determination adjusting Medicaid reimbursement rates" (Solnick, 49 NY2d at 226 [emphasis added]). Here, there was no determination made by the Alliance. Instead, plaintiffs seek a declaration that the current by-laws and funding scheme of the Alliance violate the law. That is not in the nature of an Article 78 proceeding and therefore, a six-year statute of limitations applies (see Lacks v. City of New York, 201 AD2d 309, 311 607 NYS2d 32 [1st Dept 1994]).
Plaintiffs further assert that the Alliance maintains its structure and funding scheme that purportedly violates the law. This constitutes a continuing violation for purposes of the statute of limitations. In any event, plaintiffs' claims are timely.2
Accordingly, it is hereby
ORDERED that defendants' motion to dismiss plaintiffs' complaint is denied; and it is further
ORDERED that defendants are directed to file an answer pursuant to the CPLR. The parties are directed to appear for a preliminary conference on April 4, 2017 at 2:30 p.m.
This is the Decision and Order of the Court.
Dated: February 16, 2017
New York, New York
1. Located within the park is the United States Tennis Association's Billie Jean National Tennis Center, the site of the U.S. Open.
2. Because the Court has determined that plaintiffs' claims are timely, it does not reach the question of whether the Alliance constitutes a governmental body or officer for purposes of an Article 78 proceeding.